State v. Vicks

• Decision Date: 22 September 1943
• Docket Number: 2.
• Citation: 26 S.E.2d 873,223 N.C. 384
• Parties: STATE v. VICKS.
• Court: North Carolina Supreme Court

26 S.E.2d 873

223 N.C. 384

STATE v. VICKS.

No. 2.

Supreme Court of North Carolina

September 22, 1943

This was a criminal action wherein the defendant was charged with rape upon his fourteen year old daughter.

The State offered the testimony of the prosecutrix, Ola Dean Vicks, to the effect that the defendant struck her several times on the head, knocked her down, and while she was prostrate on the floor, forcibly and against her will inserted his private parts into her private parts. There was adminicular evidence from other witnesses.

The defendant was the only witness in his own behalf, and denied that he struck and knocked down the prosecutrix, and denied that he inserted or attempted to insert his private parts into her private parts, and testified that the most he did was to slap the prosecutrix, his daughter, for disobedience, which angered her.

From sentence of death predicated upon a jury verdict of guilty of rape the defendant appealed, assigning errors.

Herbert Leary, of Edenton, for defendant, appellant.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The appellant reserved exception, and sets out the same in his brief, to an excerpt from the charge of the Court as follows "But if the State has, by evidence, satisfied the jury beyond a reasonable doubt that this defendant had carnal knowledge or sexual intercourse, the two terms being synonymous, with the prosecutrix, and that he accomplished it by force and violence, and against her will, it would be your duty to return a verdict of guilty of rape, as charged in the bill of indictment. If the evidence of the State fails to so satisfy you then you need not find him guilty of rape, and it would be your duty to consider the question of his guilt or innocence upon one of the lesser offenses which I have already mentioned and concerning which I will instruct you further in a few moments."

The words principally assailed in the appellant's brief are "then you need not find him guilty of rape". It being the contention of the appellant that the court should have used instead of these words language to the effect that "it would be your duty to return a verdict of not guilty of the charge of rape". If the words assailed were standing alone there would be more force to the exception, but when they are read in connection with the rest of the charge, as they must be, we find no error therein.

The Court was charging the jury as to the different verdicts they could render, namely, guilty of rape as charged in the bill of indictment, guilty of an assault with intent to commit rape, guilty of an assault upon a female, and not guilty. The instruction given in the charge is to the effect that if the jury should fail to find the defendant guilty of rape as charged in the bill of indictment then it would become their duty to consider the question of his guilt or innocence of the lesser offenses of an assault with intent to commit rape or an assault upon a female. Therefore, when the Court used the words "and it would then become your duty to consider the question of his guilt or innocence upon one of the lesser offenses", it was tantamount to charging the jury that if the evidence failed to satisfy them beyond a reasonable doubt of the essential elements of rape, they would acquit the defendant of that charge, and any lack of positiveness that may have arisen, or any option that may have appeared...